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TMI Blog2016 (2) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... under chapter no. 72 of the Central Excise Tariff Act, 1985. The said final products manufactured by the appellant were covered under the provisions of section 3A of the Central Excise Act, 1944 and duty liability was to be discharged on the basis of capacity of the production. The Commissioner of Customs and Central Excise Goa, while letter dated 26.09.1997 fixed the production capacity on provisional basis. The appellant subsequently, wanted to change to fixation of capacity of production by applying provisions of rule 96ZO (3) by seeking to change parameters. Lower authorities did not agree as the appellant had sought the capacity fixation based upon the furnace capacity, there was no alternative to change production capacity, unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and as well as the application for rectification of mistake. It is his submission that there is no final determination of annual capacity of production by the Learned Commissioner hence confirmation of the demands is premature. It is his submission that Learned Commissioner has not followed the direction of the Hon'ble High Court of Bombay in arriving at the annual capacity of production of the appellant. It is his submission that this tribunal in case of Sunrise Electromelt Ltd. in final order no. A/256/2007/10-04-2007 and in the case of Global Spark Ltd. in final order no. A/271/2008 dated 05-02-2008, after referring to the order of the Hon'ble High Court of Bombay dated 31-03-1998, set aside the orders-in-original those confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is definitely adverse to the case. It is his submission that the letter dated 13-03-2000 which determines the annual capacity of production of the appellant was a challengeable order and is unchallenged. 5. We have considered the submissions made at length by both sides and perused the records. 6. The issue involved in this case is whether the appellant is liable to discharge the duty liability from August, 1997 to March, 2000 based upon the annual capacity of production determined by the lower authorities and whether the demand raised by the show caused notice consequent to the determination of production capacity are correct or otherwise. 7. We find from the records that the Commissioner of Customs and Central Excise Goa has in deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Dated-13-03-2000 To. M/s Shri Balaji Rollings (P) Ltd. M-14/15,Cuncolim Industrial Estate. Cuncolim, Goa. Gentlemen, Sub: Determination of Annual Capacity of production of M/s Shri Balaji Rollings (P) Ltd, Cuncolun, Goa under Section 3A(2) of the Central Excise Act, 1944-reg. Please refer to your declaration dated 15.9.97 and this office order letter F.No. V/30/1 (K)/97-CX.I dated 26.9.97 on the above noted subject. Wherein you were permitted to clear goods provisionally on the basis of annual capacity of production determined therein. The Annual Capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 3. Office Copy. It can be seen from the above reproduced letter that Commissioner of Central Excise, Goa had finally determined the annual capacity of production. It is also to be noted that this letter is dated 13.03.2000, issued well after the judgment of the Honble High Court of Bombay (judgment dated 31/03/1998). There is no dispute as to the contents of the above said letter and appellant has also not disputed the fact of receipt of said letter. If that be so, we find that the case of the appellant that the annual capacity of production has not determined finally is factually incorrect. Secondly, on specific query raised from the bench, it was informed that the appellant has not challenged this order dated 13.03.2000 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands are incorrect, do not appeal to us, in as much the said letter dated 13.3.2000, which finally fixed the annual production capacity was in continuance of the letter dated 26.09.1997, hence the preposition of the learned counsel needs to be rejected. If there is a confirmation of the provisional fixation of the annual production capacity, whether the show cause notice invokes of the provisional determination or otherwise, also in the absence of any challenge to the annual production capacity finally determined, the duty liability along with interest arises as also the penal provisions which are invoked in this case. 10. In view of the forgoing, we hold that the appeal filed by the appellant is devoid of merits and is liable to be rej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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